Holder Names Prosecutor: Progress or Whitewash?
Holder Names Prosecutor: Progress or Whitewash?
Holder Names Prosecutor: Progress or Whitewash?
<!-- By line --><ADDRESS class="byline author vcard">By
Eric Etheridge</ADDRESS><!-- The Content -->Today, Attorney General Eric Holder named a prosecutor to investigate ?
nearly a dozen? detainee cases involving torture during the Bush Administration and released a long-awaited 2004 report by the C.I.A.?s Inspector General on the same topic. Plus the White House announced that it would continue rendering ?
terror suspects to third countries for detention and interrogation, but will monitor their treatment to ensure they are not tortured.? In addition, the White House unveiled its new new Team Interrogation ? officially the High-Value Detainee Interrogation Group ? which will be watched over by the the National Security Council.
All just three days after President Obama decamped Washington, D.C., for Camp David and then Martha?s Vineyard.
Orchestrated much?
Or, as Ben Smith writes at Politico, ?
How much does the administration want to talk about torture. So much that they?ve timed a flood of announcements for ? Obama?s vacation.?
The C.I.A. report is heavily redacted but still full of headline-making details, like interrogation via power drill, a mock execution and the threat of sexual assault on the mother of one detainee, which he would be forced to watch.
At the Washington Independent, Spencer Ackerman quickly scanned the document for new details. Among other things, he says, the Inspector General?s report adds to the record on the C.I.A.?s practice of waterboarding. The IG found ?
the way the agency practiced waterboarding was different from the way U.S. troops were taught to endure it at Survival Evasion Resistance Escape (SERE) schools ? and different from what the Justice Department?s Office of Legal Counsel thought it was approving in mid-2002.?
From the report:
OIG?s [Office of the Inspector General's] review of the videotapes revealed that the waterboard technique employed at [REDACTED] was different from the technique as described in the DoJ opinion and used in the SERE training. The difference was in the manner in which the detainee?s breathing was obstructed. At the SERE School and in the DoJ opinion, the subject?s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contest, the Agency interrogator [REDACTED] continuously applied large volumes of water to a cloth that covered the detainee?s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency?s use of the technique differed from that used in SERE training and explained that the Agency?s technique is different because it is ?for real? and is more poignant and convincing.
Others, notably
Marcy Wheeler, are also scouring the report for its news, but the biggest story of the day may be the other long-awaited report that was not released. That?s the report by the Justice Department?s Office of Responsibility, the one ?which, it has long been reported,
concluded that the DOJ lawyers who authored the torture memos (at least John Yoo and Jay Bybee) violated their ethical duties by producing legally fallacious conclusions ? i.e., they issued those memos in bad faith.?
That?s Glenn Greenwald, writing today. He goes on to argue out that ?withholding that OPR Report today is critical because it focuses attention on the flamboyant sideshow of the more extreme cases of CIA abuse, while obscuring the fact that it was high-level DOJ lawyers who, in bad faith, authorized a knowingly criminal torture regime.?
In a post yesterday,
Marcy Wheeler anticipated the same outcome:
If it is, indeed, DOJ?s plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to ?authorize? some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we?ll see in the IG Report tomorrow.
If it is, indeed, DOJ?s plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England?s of the torture regime while still protecting those who instituted that regime.
Once the IG?s report was released, the prosecutor announced and the OPR report withheld, Wheeler?s assessment didn?t change: ?
And thus the whitewash starts.?
Greenwald notes that in his statement this morning, Holder says the prosecutor?s initial review is limited only ?to those who hose who failed to ?act in good faith and within the scope of legal guidance? ? meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will ?be protected from legal jeopardy.??
As a practical matter, Holder is consciously establishing as the legal baseline ? he?s vesting with sterling legal authority ? those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: ?the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.? Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.
In addition to the prosecutor?s limited initial brief, Wheeler is also worried about the actual prosecutor named ? John Durham, a career federal prosecutor. She thinks he doesn?t have the weight to pull off the investigation required.
As I said in my panel at Netroots Nation, we?ll know a lot about whether Holder intends to do a real investigation, or just a whitewash investigating the Lynndie Englands, by the stature of the prosecutor he names. And while Durham is already neck deep in the investigation of torture on the torture tapes, he doesn?t necessarily have the stature to go after?say?Jim Haynes and John Rizzo for setting up the torture regime.
I guess Holder wasn?t that serious about investigating torture after all.
At Hullabaloo, blogger dday voices similar concerns: ?
The narrowness of this investigation, focused on only the CIA personnel who colored outside the lines set down by moral lepers John Yoo and Jay Bybee, is reprehensible.?
If it only extends that far, we?re seeing a replay of the Abu Ghraib investigation which sent Lynndie England to jail but let those who authorized and directed the abuse free with nary a warning. . . . I hold no brief for the CIA personnel who engaged in this, but confining the mandate to the low men and women on the totem pole will do nothing to chill the potential for such abuse to happen again. If any old lackey in the Office of Legal Counsel can write up an opinion essentially validating torture, and they become de facto legal as long as those using the guidelines follow them generally, we don?t really have a rule of law anymore. And future Presidents will easily discern the loophole in the system.
Not everyone is as pessimistic. At the New Republic, Amanda Silverman wrote a profile of Durham when his name was floated ?
as a front runner last month when the idea [for a prosecutor] was growing some initial steam.?
Over a long career with the Justice Department, Durham has cultivated a reputation as a successful, hard-working, publicity shy, non-partisan outsider, and has been working on a case involving the destruction of CIA videotapes for almost two years?an experience that would make him seem an ideal candidate for this new job. However, his entire career seems to have been preparing him for this monumental case. And while Durham won?t be without his hurdles . . . it?s important to keep in mind the one thing repeated by all of his former colleagues in our conversations, ?You underestimate Durham at your own peril.?
And at Balkinization, Deborah Pearlstein is willing to call the events of the day ?
a modest victory.?
I think today?s announcement is better understood as a modest victory for the more general (call me quaint) notion that there remains a meaningful distinction between power politics and law. It may well be that the Administration will take at least some kind of political hit for the decision of its Attorney General. Could be the hit will be in lost votes on the Hill. (Ubiquitous health-care-negotiator Senator Grassley (R-IA) is among those who have been vocal in opposing further investigation.) Could be any impact will be tempered (for better or worse) by other, more pressing items on the Administration?s political agenda. Either way, given the President?s repeated statements following the election that he wished to look forward, not back, on questions of accountability for torture, it seems likely the President wouldn?t have picked just now, in the midst of the health care fight of the century, to go down this road if he could avoid it. As it turns out, though, today?s news suggests that it is possible to have a President who actually believes in the prosecutorial independence of the Attorney General. And an Attorney General who actually believes in the law. If reports are true, it?s one good step. We?ll have to see what follows.
At Harper?s, Scott Horton says that Holder strategy reminds him of the Watergate-era move known as the ?
modified limited hang-out.? Still, he is willing to trust the process ? as long as Holder coughs up the OPR report.
It would be wrong to believe at the outset that this entire exercise is predetermined and a whitewash. John Durham does not have the sort of credentials I think would have been appropriate for this job?it should have gone to someone whose background makes him a peer of the attorney general, not a senior employee who reports to him. Nonetheless, Durham?s credentials as a prosecutor are impeccable, and his handling of the CIA tapes so far reflects consummate professionalism?particularly because it has been handled aggressively but without leaks to the press, which are the hallmark of the prosecutor who has the wrong motives in mind.
The public should trust Durham to do his job. But the Justice Department should come clean about its unsavory role in this entire affair. That process will start with the publication of the OPR report and the release of documents cited and discussed in it. Holder needs to release these documents immediately, and he should be pressed to account for his failure to do so.
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